HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
S.M. on behalf of G.M.
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services on behalf of the Ontario Provincial Police, Janice Mulcock and Rob Hagerman
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: S.M. v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
S. M. on behalf of G.M., Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services on behalf of the Ontario Provincial Police, Janice Mulcock and Rob Hagerman, Respondents
Indira Sawh, Counsel
1This is an Application filed under section 34(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 24, 2009 by S.M. on behalf of her husband, G.M. There was a publication ban issued in respect of criminal proceedings which are connected with the issues raised in the Application and, for that reason, the Tribunal anonymized the name of the applicant and her husband.
2The Application alleges that G.M. was falsely arrested and incarcerated. As a result of his incarceration, G.M. was denied his medications, use of his cane, and was forced to kneel, which aggravated his disabilities. The applicant alleges that this amounted to discrimination on the basis of disability and reprisal. Although a social ground was not identified in the Application, it appears that the social ground is goods, services and facilities.
3In an earlier Interim Decision, 2010 HRTO 1705, the Tribunal removed some Crown Attorneys who had been named as personal respondents based upon the principle of prosecutorial immunity. In that Interim Decision, the Tribunal also deferred the Application pending the conclusion of the criminal proceeding against the applicant’s husband. At paras. 15 and 16 of that Interim Decision, the Tribunal stated:
In this case, there are ongoing criminal proceedings in which the applicant’s husband has been charged. There is a publication ban in the criminal proceedings, which prevents the respondents from elaborating about the criminal charges and from fully responding to the allegations in the Application. Allowing the applicant, who is married to the accused in the criminal proceeding, to access these records in the Tribunal proceedings would potentially jeopardize the criminal proceedings.
Accordingly, the Tribunal orders the deferral of the Application pending conclusion of the criminal proceeding against the applicant’s husband. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on before the Tribunal after the criminal proceeding has concluded. If the complaint before the OCCPC is still outstanding at that point, the Tribunal will hear submissions from the parties on whether the Application should still be deferred on that basis.
4The Tribunal sent the applicant a letter dated June 16, 2011 in which the Tribunal requested an update on whether the criminal proceedings were still ongoing. The Tribunal requested a response from the applicant within 30 days of the date of the letter.
5The applicant did not respond within 30 days, but she did file, on September 27, 2011, a Request for Order During Proceedings (“RFOP”) requesting to re-activate her deferred Application. In addition to her stated reasons for the re-activation, the applicant referenced a number of documents, including medical documentation, newspaper and internet articles, that she stated were too numerous to email or fax to the respondents and the Tribunal. The Tribunal advised the applicant that her RFOP was not complete and would not be considered until she provided copies of documentation upon which she was relying to the respondents and the Tribunal. The applicant subsequently delivered these documents to the respondents and filed them with the Tribunal. Prior to the applicant delivering these documents to the respondents, the respondents had indicated that they intended to file a Response to the RFOP, but could not do so until they received the applicant’s documentation.
6By letter dated December 13, 2011, the Tribunal wrote to the applicant noting that she had not provided the Tribunal with a copy of the decision or any documentation that showed the outcome of the criminal proceeding to which the Application was deferred. By letter dated January 27, 2012, the applicant provided the Tribunal with a copy of the court record from the Superior Court of Justice which states that on August 15, 2011, “At the request of the Crown, the indictment is stayed”.
7On April 4, 2012, the Tribunal issued a Case Assessment Direction (“CAD”). In the CAD, the Tribunal stated it was unclear whether the applicant had also provided the respondents with a copy of her January 27, 2012 correspondence. The Tribunal provided a timetable for the applicant to file proof that she provided the respondents with a copy of her January 27, 2012 correspondence and a timetable for the respondents to file a Response to the RFOP, which was extended upon the request of the respondents’ counsel.
8The applicant has confirmed that she has delivered a copy of her January 27, 2012 correspondence to the respondents, at least as of April 9, 2012. The respondents have not filed a Response to the RFOP, but have indicated, by email dated April 24, 2012, that they are not opposing the re-activation of the Application. However, they submit:
The Respondents would however request confirmation that indeed [G.M.] is still in favour of his wife bringing this matter forward on his behalf. We ask that the Tribunal direct [the applicant] to produce another Form 4 indicating her husband’s continued support of this application. Approximately 3 years have passed since the initial application. Also, due to the nature of criminal proceedings that were stayed, and due to the publication ban the respondents would request that [G.M.] re-engage his consent regarding this application.
9The Tribunal declines to grant the respondents’ request that the applicant provide another Form 4 indicating her husband’s continued support of the Application. There is no information before the Tribunal to suggest that the applicant’s husband is not satisfied with the Application being brought on his behalf by the applicant.
10While no party has addressed the complaint that was filed before the OCCPC, the applicant’s Request to re-activate is granted. However, the parties are directed to deliver to each other and file with the Tribunal by August 30, 2012, an update about the complaint that was filed before the OCCPC and the results of that complaint.
11As the parties specifically indicated on their respective pleadings that they are not agreeable to mediation, the Tribunal will place this file in the queue to be scheduled for hearing. The Tribunal draws the applicant’s attention to the decision of Karst v. Dan Symes, 2010 HRTO 2197, in which an applicant brought an Application on behalf of her husband, the complainant. That Application was dismissed because the applicant did not have any firsthand evidence of the allegations. The complainant did not testify at the hearing.
12It is likely that the Tribunal will issue further case directions to the parties, including whether the applicant and her husband’s names still need to be anonymized and whether or not there continues to be a publication ban arising from the criminal proceedings.
order
13The Tribunal orders the following:
a. The applicant’s Request to re-activate is granted;
b. The Tribunal will place this file in the queue to be scheduled for hearing; and
c. The parties are to deliver to each other and file with the Tribunal by August 30, 2012 an update about the complaint that was filed before the OCCPC and the results of that complaint.
14I am not seized with this matter.
Dated at Toronto, this 26^th^ day of July, 2012.
Signed by
Alison Renton
Vice-chair